Vietti v. Jeffries

• Decision Date: 16 April 1931
• Docket Number: 5095
• Citation: 77 Utah 498,297 P. 1012
• Court: Utah Supreme Court
• Parties: VIETTI v. JEFFRIES

297 P. 1012

77 Utah 498

VIETTI v. JEFFRIES

No. 5095

Supreme Court of Utah

April 16, 1931

Appeal from District Court, Third District, Salt Lake County; J. W McKinney, Judge.

Action by John Vietti against William Jeffries. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED, WITH DIRECTIONS.

Leslie Frazer, of Salt Lake City, for appellant.

A. C Cole, of Bingham Canyon, for respondent.

ELIAS HANSEN, J. CHERRY, C. J., and FOLLAND, STRAUP, and EPHRAIM HANSON, JJ., concur.

OPINION

ELIAS HANSEN, J.

This action is founded on a complaint which reads as follows:

"The plaintiff complains of defendant and for cause of action against him alleges:

"1. That at Bingham, Salt Lake County, Utah, on or about September 15th, 1927, the said defendant made, executed and delivered to one Louis Miola his certain promissory note in writing whereby and wherein he promised to pay to the said Louis Miola twelve months after September 15, 1927, the sum of five hundred dollars.

"2. That thereafter, and before the maturity of said note, the said Louis Miola endorsed the said note and delivered the same to this plaintiff, who is now the owner and holder thereof.

"3. That the said defendant has not paid the said note or any part thereof, or any of the interest thereon, and the said note is and ever since September 15, 1928, has been wholly due, unpaid and owing.

"4. That this plaintiff has demanded of said defendant that he pay said note, but defendant refused and still refuses to pay it.

"Wherefore plaintiff prays judgment against the defendant for the said sum of five hundred dollars, together with interest thereon at the rate of eight per cent. per annum from September 15, 1927, and for his costs and disbursements herein."

The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant given leave to answer. He failed to answer. His default was entered because of such failure and a judgment was rendered against him in favor of the plaintiff for the sum of $ 612.20. The defendant appeals. The appeal is upon the judgment roll. The sole question presented for determination is, Does the complaint state facts sufficient to constitute a cause of action? We are of the opinion that the complaint is fatally defective. It will be observed that the complaint describes the instrument sued upon as a promissory note payable to Louis Miola. Unless the note contained words of negotiability, such as "or order" it was nonnegotiable. The note is not set up in the complaint nor attached thereto. In the absence of an allegation, we cannot...